High Court · 2012

THE HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mr. S.K. Medhi, learned counsel for the petitioner. Also heard Mr. B. Chou dhury, learned Standing Counsel, Education Department appearing for all the resp ondents. Case of the petitioner is that he was appointed as peon in the Rangia Madrassa H igher Secondary School, Rangia on 16.8.1989. The said school was provincialised w.e.f. 25.03.96. On that day itself, service of the petitioner was temporarily up-graded as Lower Division Assistant. Grievance of the petitioner is that his service was dropped at the time of provincialisation of the school. Petitioner had approached the respondents from time to time for regularization of his servi ce but there was no response. He, therefore, filed WP(C) No. 846/2000 before th is Court which was disposed of on 22.4.2004 directing the respondents to conside r the case of the petitioner in terms of the judgment of this Court in Jiban Dek a Vs. State of Assam and Ors. reported in 2008 (3) GLT 229. As still no steps were taken, petitioner again approached this Court by filing W P(C) No. 6709/2005 which was disposed of by order dated 31.3.2008 by directing t he Commissioner and Secretary to the Govt. of Assam, Education Department to tak e up the case of the petitioner and pass appropriate orders as per law within tw o months. Petitioner’s case along with others were thereafter placed before the High Power Committee (respondent No. 4). However, in the meeting of the respondent no. 4 h eld on 27.7.2010, the case of the petitioner as dropped employee was not conside red. Aggrieved, the petitioner is before this Court by way of the present petition. Respondent No. 2 i.e. Director of Secondary Education, Assam has filed an affida vit-in-opposition. Respondent No. 2 has stated that the school was provincialis ed on 12.03.1996 with 11 posts. After provincialisation, the Managing Committee of the school up-graded the petitioner to the post of Lower Division Assistant o n 25.3.96, which is not permissible. Case of the petitioner was placed before th e High Power Committee but the committee found no justification to consider his case. It is also stated that there is no rule for regularization of the service of Lower Division Assistants in Higher Secondary Schools which is to be made di rectly by the appointing authority on the basis of test and interview. In his rejoinder affidavit, petitioner has contended that even if his up-gradat ion from the post of Peon to the post of Lower Division Assistant is treated as not permissible, the respondents have not given any justification for denying hi s claim to the post of Peon, which is a Grade IV post. He has submitted that the re was no consideration of his case in terms of Jiban Deka (Supra). Petitioner h ad also filed an additional affidavit on 22.12.2011 placing on record his educat ional qualification which made him eligible for appointment as Lower Division As sistant. Mr. Medhi, learned counsel for the petitioner submits that even if it is accepte d that the petitioner is not entitled to consideration for provincialisation of his service as Lower Division Assistant, his case for consideration as a droppe d Gr.IV employee cannot be denied. He submits that no justification or reasons h ave been furnished as to why petitioner is not entitled to such a consideration. Referring to the judgment of this Court in the case of Jiban Deka (Supra), lear ned counsel for the petitioner submits that necessary instructions may be issue d to the respondents to consider his case for provincialisatioin as Gr. IV emplo yee in the School. Learned Standing Counsel for the Education Department on the other hand submits that case of the petitioner cannot be considered for provincialization as Low er Division Assistant and supports the decision of the authority. The submissions made have been considered. As already noticed above, the petitioner had approached this Court on two earlie r occasions. In WP(C) No. 846/2000, this Court on due consideration passed the f ollowing order on 22.4.2004 :- (cid:28) 9. In view of the aforesaid facts and circumstances and on perusal of the mate rials on record and on the basis of the submissions made by the learned counsel for the parties, I dispose of this writ petition with a direction to the respond ents to consider the case of the petitioner in terms of the direction as contain ed in paragraph 6 of the judgment and order dated 1.9.2003 passed in Civil Rule No. 1571/98 and other writ petitions of which reliance has been placed by Mr. S arma, learned senior standing counsel, Education Department. Accordingly, the di rections contained in the said judgment shall form part of this order. 10. The petitioner shall produce the certified copy of this order along with the copy of the writ petition together with all its enclosures to the respondents f or their necessary follow up action in terms of the direction as contained in pa ragraph 6 of the aforesaid judgment and order dated 1.9.2003 passed in C.R. No. 1571/98 and other writ petition. (cid:29) Again, in WP(C) No. 6709/2005, this Court on 31.3.2008directed as under :- (cid:28) 7. In view of aforesaid facts situation, I deem it proper to dispose of this w rit petition with direction that the Commissioner and Secretary, Government of A ssam, Education Department, Dispur, shall take up the case of the petitioner and pass appropriate order thereon as may be deemed necessary as per Rules/Policy/G uideline by passing a speaking order. 8. The said authority shall pass such order as deem necessary after consulting t he relevant records and shall communicate the same to the Commissioner. This sha ll be done preferably within a period of two(2) months from the date of receipt of a certified copy of this order. (cid:29) Going through the judgment of this Court in Jiban Deka (Supra), it is seen that the State had admitted before the Court that the cases of dropped teachers would be considered in terms of a policy document dated 13.1.2003. It was further sta ted that the cases of dropped teachers would be dealt with by the State in accor dance with the said policy and all those who are found to be eligible will be re gularised in a phase manner as indicated in the policy. It was also conceded by the State that the said policy would apply to members of the non-teaching staff as well, whose cases would be similarly dealt with. It is seen from minutes of the High Power Committee meeting held on 27.7.10 that the case of the petitioner was not considered. The relevant portionof the minut es are as under :- (cid:28)Rangia Madrassa H.S. School : The name of Md. Mazbul Hussain (Grade-IV) was not considered as dropped employee as per norms. (cid:29) It has not been disclosed either in the minutes or in the counter affidavit file d by the respondents as to how the case of the petitioner could not be consider ed as a dropped Grade-IV employee as per norms. As noticed above, the State had taken a clear stand in Jiban Deka’s case (Supra) that cases of non teaching staf f will also be covered by the policy decision taken to regularize the services o f dropped teachers. In view of above, this court is of the view that petitioner’s case for regulariz ation as a Grade-IV employee in the Rangia Madrassa H.S. School, Rangia requires reconsideration. Accordingly, the decision taken by the respondent No. 4 on 27.7.10 in respect of the petitioner is hereby set aside and quashed. Matter is remanded back to the respondent No. 4 for a fresh consideration in accordance with law consistent wit h the observations made herein above within a period of two months from the date of receipt of a certified copy of this order. Writ petition is allowed to the extent indicated above. No cost.